DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
Examiner acknowledges the reply filed on 12/29/2025 in which claim 6 has been amended. Currently, claim 6 is pending for examination in this application.
Response to Arguments
Applicant has resolved the claim objection.
Applicant's arguments filed 12/29/2025 have been fully considered but they are not persuasive. Applicant argues that Petrov does not teach the oxygen content being as high as 60-65 vol% because it merely discloses “at least 21 vol% of oxygen”. Applicant states [0074] teaches cautious administration of oxygen by stating “the mode of minimal and effective oxygen consumption” which Examiner disagrees with as there is no indication in Petrov limiting the oxygen value other than “at least 21% oxygen” in [0033] and [0067]. Applicant also argues that the claimed range is non-obvious since it is critical to the invention since 21-40 vol% of oxygen fails to achieve rapid oxygenation and >65 vol% of oxygen induces oxidative damage. Examiner notes that support for >65 vol% of oxygen inducing oxidative damage is in [0046] but support for 21-40 vol% of oxygen failing to achieve rapid oxygenation does not appear to be stated in the specifications. Examiner notes that Petrov et al. [0033] teaches a range of 21%-69% oxygen by volume since there is at least 1% xenon by volume, 30% argon by volume and nitrogen is determined by the amount of xenon, argon, and oxygen. Petrov teaches a range that already encompasses the claimed range of 60-65 vol% and thus one of ordinary skill in the art under routine experimentation/optimization is capable of selecting 60-65% vol. of oxygen since it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Petrov et al. (RU 2684748 C2).
Regarding claim 6, Petrov teaches a medicinal composition for use by inhaling in emergency management ([0033] method for long-term maintenance of viability in cases of wounds with significant blood loss consists of the fact that the wounded person is transferred to a breathing mode with an artificial gas mixture containing up to 1-35% xenon, 30-35% argon, at least 21% vol. oxygen and nitrogen - the rest) of acute ischemic attacks with impaired cerebral or coronary circulation ((Statement of intended use or functional, see MPEP 2114. “If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction.” MPEP 2111.02). Examiner notes ischemia is known as a condition involving reduced blood flow and oxygen supply to a particular body part/organ and Petrov par. [0021] teaches ischemia is caused by blood loss and specifically, brain tissue is sensitive to oxygen supply. Additionally, Petrov is disclosed for use in conditions with significant blood loss), the composition being an artificial gas mixture containing 30-35 vol.% of argon ([0033] 30-35% argon), 1-10 vol.% of xenon ([0033] 1-35% xenon. Examiner notes 1-35% xenon encompasses the entirety of the range 1-10% xenon; therefore, the limitation is met), and nitrogen ([0033] nitrogen - the rest).
Petrov does not explicitly disclose 60-65 vol.% of oxygen. However, Petrov teaches [0033] at least 21% vol. oxygen. Since at least 21% vol. oxygen includes the range of 60-65 vol.% of oxygen it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to provide 60-65 vol.% of oxygen, as a matter of routine optimization since it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Additionally, it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Petrov [0033] teaches a range of 21%-69% oxygen by volume since there is at least 1% xenon by volume, 30% argon by volume and nitrogen is determined by the amount of xenon, argon, and oxygen. There are a finite number of choices available to a person of ordinary skill in the art for selecting 60-65 vol.% of oxygen from the range of 21%-69% oxygen. Therefore, “When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious under 103” KSR Int' l Co. v. Teleflex, Inc., 550 U.S. __, 82 USPQ2d 1385 (2007).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/M.I.A./Examiner, Art Unit 3785
/VALERIE L WOODWARD/Primary Examiner, Art Unit 3785